Zoning board retreats on Walmart deal

<p>A crowd listens in during a debate on the propose North side Walmart location.Â Fearful of losing its leverage to force concessions from Walmart, theÂ Evansville-VanderburghÂ Board of Zoning Appeals Thursday stepped back from the precipice of a vote that could have done just that.</p>

Fearful of losing its leverage to force concessions from Walmart, the Evansville-Vanderburgh Board of Zoning Appeals Thursday stepped back from the precipice of a vote that could have done just that.

After two-plus hours of open negotiation with Walmart representatives seeking to build a Supercenter with gas station and four outlots at East Boonville-New Harmony Road and Indiana 57, the board voted instead to postpone a decision by another month. Mindful of demands for concessions by neighbors of the proposed 30.7-acre commercial complex, board members had been bargaining with Walmart to limit the retail giant’s use of signage, outdoor storage space and delivery trucks, among other things. Those limitations would have been conditions of approving Walmart’s requests for variances to parking, signage and parking lot landscaping requirements.

But zoning board attorney Dirck Stahl warned members that if they approved variances with conditions that Walmart found impossible to fulfill or unreasonable — conditions more onerous than Vanderburgh County’s zoning ordinance requires in the first place — Walmart could play its ace in the hole.

The retail giant could drop its requests for variances to the zoning code, obeying the code’s requirements to the letter — but unfettered by any limitations on the use of its property beyond those contained in the law. During Thursday’s Board of Zoning Appeals meeting, Walmart attorney Joseph D. Calderon said the site at Boonville-New Harmony and Indiana 57 “could definitely be built” without variances.

That put the zoning board in a vulnerable position, Stahl said afterward.

“If they (zoning board members) make those conditions too tough, Walmart would be within their rights to say, ‘All right, well, we’ll just go ahead and put in the 1,058 parking spaces (instead of the 758 Walmart seeks) and all of those other things, and not have any berms,” the attorney said.

“That’s the risk (board members) take in voting for conditions that the property owner won’t agree to.”

The zoning board, Walmart’s representatives and neighbors of the proposed development site haggled over numerous issues Thursday, some big and some small — but the deal appeared to snag on the board’s proposed condition that Walmart construct a berm along the development site’s southern border on Boonville-New Harmony. The berm, four feet high with trees planted on top, would have been intended help screen residences on the south side of the road from parking lots and businesses.

The condition was included in a variance approval motion made by board member Cheryl Musgrave.

But Calderon said he and two Walmart officials accompanying him did not have the authority to agree to a four-foot berm on Boonville-New Harmony, among other conditions, and could not accurately predict how the retail giant’s officers would react to such a requirement.

Explaining why Walmart opposes a berm along Boonville-New Harmony, Calderon reminded zoning board members that Walmart plans to sell nearly four and a half acres on the property’s southern border for four outlots that could be developed as restaurants, banks or small shops. Boonville-New Harmony runs along the southern border.

Whichever businesses buy the outlots, the attorney said, “will have to come in for their own site development plan approval.”

“From a retail perspective, and from a public safety perspective, you do not want to create too much berming along a thoroughfare street,” Calderon said. “That’s not good for visibility, and it certainly would destroy the appetite of a lot of retailers.

“There will, of course, be landscaping and green space provided along the frontage of Boonville-New Harmony. The code requires that, and if the board wanted additional landscaping, we can certainly discuss that tonight.”

Calderon added that the Walmart building is proposed to be more than 330 feet from the closest residence on Boonville-New Harmony, which he called, “way, way, way beyond any setback requirement, given the fact that it is behind the outlots.”

Neighbors have said the southern border berm should be seven feet high at a minimum and landscaped with a line of evergreen trees six to eight feet high to protect them from noise and light pollution.

At the end of Thursday’s zoning board meeting, Musgrave withdrew her motion and the board voted unanimously to table consideration of Walmart’s variance requests for one month. In the meantime, board members want Walmart to engage with county engineering and drainage officials to clarify questions about its plans.

The two-hour-plus debate over Walmart’s plans saw numerous claims and counterclaims, but one remark by Calderon, lost in the fabric of the discussion, likely will resonate with zoning board members and the county officials who appointed some of them.